Ask Allistair: Marijuana Use in Rental Properties

21 November 2018

What does the legalization of marijuana mean for Ontario tenants and landlords? We asked an expert on whether or not tenants can smoke in their units and the legality behind Landlords filing for eviction.

Jamie Johnston: Welcome, I’m Jamie Johnson. I’m joined today by Allistair Trent, one of our top real estate agents. He’s also licensed to provide legal services and he represents landlords and investors, particularly at the Rental Tribunal. Allistair, welcome again.

Allistair Trent: Thanks Jamie

Jamie: The hot topic seems to be marijuana and the legalization of marijuana. How do you think that will affect rentals in Ontario?

Allistair: Well, from a practical level, not really that much. It’s very similar to smoking tobacco which I argued the first case about in 2008. The main reason that you can evict a tenant is for disturbing other landlords, interfering with the landlord’s rights or causing damage to the property. Whether something is legal or illegal doesn’t really come into it that much.

Jamie: So, what you’re saying is, even if it was illegal to smoke marijuana, you can’t evict a tenant just for that. It has to be them impacting other tenants?

Allistair: Yes, absolutely. The same thing with any type of illegal activity. While you can give notice to a tenant for committing an illegal act on the premises the test of the board applies is what impact that illegal act has on other people. So, for example, if you live in a building and tenants smoke marijuana and the smell disturbs other residents of the building, or other tenants of the building, you can certainly serve them a notice to evict. But, if someone is sitting in their apartment and commits a tax fraud, for example, which has no impact on anybody even though it’s highly illegal, you won’t be able to evict the tenant.

Jamie: Interesting point. I see the primary problem is being in condo buildings. What about tenants in low rises, semi-detached, or a detached house for example.

Allistair: Well, those are difficult. In a detached home, where there are no other tenants, and the landlord doesn’t live there, then it will be almost impossible to evict the tenant for smoking marijuana because there is nobody else to disturb.

In a condo building, it’s also somewhat of an interesting circumstance, because you have to be disturbing tenants of the same landlord. In a condo building, there are other owners, and tenants with different landlords, so basically it makes it far more difficult. If the smoking of marijuana disturbs other owners, or tenants of other owners, then you complain to the condo board and the condo board writes a letter to the landlord, the landlord can then evict based on interference with their legal rights because it’s causing a problem with the condo board.

Jamie: So, what if a condo board just passes a bylaw that says “no marijuana in the building”, even though it’s legal?

Allistair: Well, again, people would have to complain. If the tenant does anything that interferes with the relationship with the condo board and the landlord, then you can serve the notice on that basis.

Jamie: So, if the condo board came to me as an owner of a unit, and complained that my tenant was smoking marijuana, or even cigarettes for that matter, then leaning on me, I would then have the authority to evict the tenant?

Allistair: Absolutely,. Because it’s interfering with your legal interests and interfering with your relationship with the condo board and exposing you to potential litigations from the condo board.

Jamie: So what can we conclude from this, Allistair? It seems to me, that if someone wants to smoke marijuana, they better own their own property, and it better be a single detached property, or rent a single detached property. Otherwise, there’s lots of other people who can create problems for you.

Allistair: Well, basically there’s not much to be taken out of it other than the fact you’re not to engage in conduct that disturbs other people. Whether it be other tenants, other owners, the condo board. Whether you’re an owner or a tenant, it works the same way.

Jamie: That’s my point, In summarizing Allistair, we’ve talked about the impact of marijuana and smoking has the same regulations and rules in the condo unit as marijuana. If it prohibits the enjoyment of other tenants in the building, or other owners in the building.

I want to thank Allistair for coming by today and talking about marijuana. I’m sure if you have anymore questions you can contact Allistair through our office at 416-203-6636.